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R v Iskandar

R v Iskandar

Case [2011] NSWSC 1192 11 October 2011

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Supreme Court

New South Wales

Medium Neutral Citation: R v Hazairin Iskandar; R v Andrew Iskandar & R v Nita Iskandar [2011] NSWSC 1192
Hearing dates: 11 October 2011
Decision date: 11 October 2011
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
1. I order that the Applicant Hazairin Iskandar be tried separately from the Accused Andrew Iskandar.
2. I stand over the trial of the Applicant to the Arraignments List on 11 November 2011.

Catchwords: CRIMINAL LAW - procedure - application for separate trial by co-accused - Applicant and co-accused indicted for murder - circumstantial case against Applicant - case against co-accused includes admissions of joint criminal enterprise - whether case against Applicant is a weaker one - whether prejudice at a joint trial because of admissions - separate trial ordered.
Cases Cited: Gilbert v R [2000] HCA 15; (2000) 201 CLR 414
Madubuko Henry Ugo v R [2011] NSWCCA 135
R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994)
R v Darwiche [2011] NSWCCA 62
R v Fernando [1999] NSWCCA 66
R v Mahmoud Chami [2002] NSWCCA 136
R v Middis (unreported - Hunt J - 27 March 1991)
R v Pham [2004] NSWCCA 190
R v Symss [2003] NSWCCA 77
Regina v Patsalis & Spathis [No 1] [1999] NSWSC 649; (1997) I07 A Crim R 432
Webb & Hay v The Queen (1994) 181 CLR 41
Category: Interlocutory applications
Parties: The Crown
Hazairin Iskandar (Accused - Applicant)
Andrew Iskandar (Accused)
Nita Iskandar (Accused)
Representation: Ms K Shead (Crown Prosecutor)
Mr J Trevallion (Hazairin Iskandar)
Mr J O'Sullivan (Andrew Iskandar)
Mr D G Price (Nita Iskandar)
Solicitor for Public Prosecutions (Crown)
Archbold Legal (Hazairin Iskandar)
Nyman Gibson Stewart (Andrew Iskandar)
Archbold Legal (Nita Iskandar)

File Number(s): 2010/48301; 2010/49007 & 2010/49279

Judgment

Hazairin Iskandar and Andrew Iskandar have been jointly indicted for the murder of Mohd Shah Saemin on 21 February 2010 at Leichhardt. Nita Iskandar is charged that, knowing Andrew Iskander committed that murder, between 21 and 24 February 2010 she received, harboured, maintained and assisted him. The 3 accused have pleaded not guilty to the charges.

Hazairin Iskandar applied on the first day of the trial that a separate trial from the co-accused Andrew Iskandar (who I shall refer to as "Andrew") be granted to him. After hearing argument I ordered that the Applicant be tried separately from Andrew. These are my reasons for so doing.

The basis for the application was that evidence to be led against Andrew, which contained admissions by him of an intention to kill the deceased, contained prejudicial material implicating the Applicant. The admissions were contained in a statement of Esau Maiava dated 18 August 2010 and in an ERISP of Victor Lau of 2 March 2010.

The Crown case is that there was a joint criminal enterprise involving the Applicant and Andrew to assault and kill the deceased, or at least to inflict grievous bodily harm upon him, because he was supposedly having an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Iskandar

Details

AGLC: R v Iskandar [2011] NSWSC 1192
Case: [2011] NSWSC 1192
Decision Date: 11 October 2011

CaseChat Overview and Summary

The case of R v Iskandar involved a criminal trial where the applicant and his co-accused were indicted for the offence of murder. The court was called upon to decide an application for a separate trial made by the applicant, who argued that his case was circumstantial and weaker compared to the case against his co-accused, which included admissions of a joint criminal enterprise. The concern was that a joint trial might result in prejudice to the applicant due to the co-accused's admissions. The court considered the nature and strength of the evidence against each defendant and the potential for prejudice at a joint trial.

The primary legal issue was whether the applicant's case was significantly weaker than that of the co-accused, and if so, whether a separate trial would be warranted to prevent any prejudice that might arise from the co-accused's admissions during the joint trial. The court needed to balance the rights of both defendants to a fair trial and the potential for prejudice that could stem from the differing strengths of the evidence against them. The court also considered the circumstances of the alleged crime and the role each defendant played in the alleged joint criminal enterprise.

In delivering the judgment, the court held that the applicant's case was indeed weaker due to the circumstantial nature of the evidence against him, while the co-accused's case was bolstered by admissions of a joint criminal enterprise. The court found that there was a real risk of prejudice to the applicant if a joint trial proceeded, as the admissions by the co-accused could unfairly influence the jury's perception of the applicant's guilt. Consequently, the court ordered that the applicant and his co-accused should be tried separately to ensure a fair trial for both parties.

The final orders of the court were that the applicant and the co-accused would be tried separately, with the trial dates to be determined. This decision aimed to protect the applicant's right to a fair trial by preventing any prejudicial impact that might result from the co-accused's admissions during a joint trial.

Orders